Mass Litigation Panel equipped to handle water cases, attorney says

CHARLESTON -- The recent water contamination class actions in West Virginia have many similarities to the cases that already have been brought before the state's Mass Litigation Panel.

Anthony Majestro, an attorney with Powell & Majestro in Charleston, said all of the lawsuits before the Mass Litigation Panel involve a large amount of plaintiffs and a large amount of claimants.

"The Mass Litigation Panel does a little bit of everything," Majestro said. "The cases brought before them can be anything from personal injury to economic loss to water and pollution issues."

Majestro said the water cases involve different types of claims, which have all been brought before the panel in different cases.

"The water contamination cases involve medical monitoring, economic loss, personal injury, water and pollution issues, among other things," Majestro said. "The panel has seen cases like this before, but none have involved all these types of claims."

Majestro said the water contamination cases are different in that they involve a greater number of people that previous cases before the panel.

"With this one incident, more than 300,000 people were affected," he said. "This one incident alone involves so many things and so many people."

Currently, there are two cases against Freedom Industries, West Virginia American Water and Eastman Chemical filed in the U.S. District Court for the Southern District of West Virginia at Charleston.

There have also been at least 30 lawsuits filed against Freedom and West Virginia American Water in Kanawha Circuit Court, but all of those have been removed to federal court. That means, for now, the cases can't be referred to the MLP unless they are remanded back to state court.

The attorneys involved are seeking to have the multitude of class action lawsuits filed in several counties be consolidated and sent before the panel.

It will be up to Supreme Court Chief Justice Robin Jean Davis to decide if the cases meet the mass litigation panel's criteria.

The motion, which was filed Jan. 11 by Majestro and J.C. Powell; James C. Peterson of Hill, Peterson, Carper, Bee & Deitzler PLLC; and Timothy C. Bailey of Bucci, Bailey & Javins LC sought to refer the motion to Davis with the request that she refer it to the MLP.

On Jan. 9, Freedom Industries negligently and recklessly caused a chemical leak at its Etowah River Terminal plant, which resulted in a chemical spill into the Elk River, the lawsuits allege. West Virginia American Water customers in parts of nine West Virginia counties were without water for days.

The chemical, 4-methylcyclohexane methanol, is a foaming agent used in the coal preparation process. The nine counties affected went weeks without running water and are still plagued with the licorice-sweet smell of the chemical.

On Jan. 17, just eight days after the water contamination crisis, Freedom Industries filed for Chapter 11 bankruptcy protection.

On Jan. 29, Freedom's suggestion of bankruptcy was filed in the U.S. District Court for the Southern District of West Virginia at Charleston.

Gary Southern, the company's president, signed a bankruptcy petition, estimating Freedom's debts at $10 million or less, but the cost of the water contamination disaster is likely to run much higher.

On Feb. 21 and 22, 24 of the cases against Freedom were removed to the U.S. Bankruptcy Court for the Southern District of West Virginia at Charleston.